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In Re Tucker

OPINION FILED DECEMBER 30, 1976.

IN RE JAMES EARL TUCKER, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES EARL TUCKER, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Kankakee County; the Hon. LOUIS K. FONTENOT, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE SCOTT delivered the opinion of the court:

Rehearing denied March 3, 1977.

This is an appeal from a juvenile proceeding conducted in the Circuit Court of Kankakee County which resulted in James Earl Tucker, a minor (hereinafter referred to as the defendant), being committed to the Department of Corrections after a finding had been made that he had violated the terms of his probation by committing the offense of disorderly conduct.

The facts pertinent to this appeal are as follows. On May 1, 1974, a petition was filed in the Circuit Court of Kankakee County praying that the defendant, then 12 years of age, be declared delinquent on the grounds that he had committed the offense of burglary. An adjudicatory hearing ensued wherein it was determined that the defendant had violated the criminal laws of our State. On May 17, 1974, an order was signed declaring the defendant to be a ward of the court. On June 19, 1974, at a dispositional hearing pursuant to a recommendation of the juvenile probation officer he was placed on probation.

On April 25, 1975, a petition for change of custody was filed in which it was alleged that the defendant had violated the terms of his probation by committing the offense of disorderly conduct in that he knowingly exposed his penis to an adult female person. There were other charges of probation violation conduct contained in the petition but these were subsequently dismissed on the motion of the defendant's retained defense counsel.

A hearing was had on the petition for change of custody and the court found that the defendant had violated the terms of his probation and at an ensuing dispositional hearing the court ordered that he be committed to the Department of Corrections. At this time the defendant was 13 years of age.

A number of issues are raised in this appeal by the minor defendant, the proper determination of which he contends will warrant a reversal of the order revoking his probation and the order committing him to the Department of Corrections. We prefer, however, to direct our attention to the issue as to whether the court erred in committing the defendant to the Department of Corrections based upon a finding of probation violation, since the court could only impose the dispositions available when the defendant was originally placed on probation, at which time he was but twelve years of age.

• 1 In determining this issue we first direct our attention to the Juvenile Court Act and more specifically to section 5-3(6) (Ill. Rev. Stat. 1973, ch. 37, par. 705-3(6)), which provides as follows:

"After a hearing, the court may modify or enlarge the conditions of probation or of conditional discharge. If the court finds that the minor has violated a condition at any time prior to the expiration or termination of the period of probation or conditional discharge, it may continue him on the existing disposition, with or without modifying or enlarging the conditions, or may revoke probation or conditional discharge and impose any other disposition that was available under Section 5-2 [ch. 37, par. 705-2] at the time of the initial disposition." (Emphasis added.)

In ascertaining what dispositions were available to the court when the defendant, at age 12, was placed on probation we find that section 5-2(1)(a)(5) of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 705-2(1)(a)(5)) states as follows:

"(1) The following kinds of orders of disposition may be made in respect of wards of the court:

(a) A minor found to be a delinquent under Section 2-2 [Ill. Rev. Stat. 1973, ch. 37, par. 702-2] may be * * * (5) committed to the Department of Corrections under Section 5-10 [Ill. Rev. Stat. 1973, ch. 37, par. 705-10] if he is 13 years of age or older, provided that minors less than 13 years of age may be committed to the Department of Corrections until July 1, 1973. * * *" (Emphasis added.)

We have set forth the statutory provisions of the Juvenile Court Act which are applicable in the instant case. After an examination of them it is clear that the court could only impose those dispositions that were available to it when the minor defendant was placed on probation, at which time he was but 12 years of age. A commitment to the ...


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